Medical Malpractice: Misdiagnosis and Delayed Diagnosis

The wrong diagnosis or a late diagnosis can lead to a medical malpractice lawsuit.

By , Attorney University of Missouri–Kansas City School of Law
Updated 3/16/2023

Mistaken medical diagnoses are surprisingly common, costly, and harmful. Between 1986 and 2010, the leading cause of malpractice payouts was a missed or incorrect diagnosis. Researchers at Johns Hopkins University School of Medicine have estimated that diagnostic errors might be responsible for as many as 160,000 permanent injuries or deaths per year.

While not every missed, incorrect, or late diagnosis ("misdiagnosis") equals a medical malpractice claim, many do. Those that do are the focus of this article.

Types of Diagnostic Errors

There are several ways that doctors can make diagnostic mistakes. Three of the most common happen when the doctor:

  • makes the wrong diagnosis
  • fails to diagnose a condition, or
  • makes a delayed (late) diagnosis.

Doctor Makes the Wrong Diagnosis

The wrong diagnosis happens when the doctor mistakenly decides you're suffering from a condition you don't have. For example, suppose a doctor diagnoses a patient who is having a heart attack as suffering from acid reflux. If the patient doesn't have acid reflux, the doctor has made the wrong diagnosis.

Doctor Fails to Diagnose a Condition

A doctor can fail to diagnose a condition in a couple of ways. First, the doctor might give a clean bill of health to a patient who has a diagnosable condition. In other words, the doctor makes no diagnosis at all.

Second, the doctor might correctly diagnose one condition but fail to diagnose another. Return to our heart attack example, above: The patient is having a heart attack but the doctor diagnoses acid reflux. If the patient does have acid reflux, the doctor has correctly diagnosed that condition. But if the doctor doesn't also spot the heart attack, the doctor has failed to diagnose that condition.

Doctor Makes a Delayed (Late) Diagnosis

The doctor eventually makes the correct diagnosis, but only after a significant delay from the time the condition should have been diagnosed.

Suppose our heart attack patient leaves the emergency room with only an acid reflux diagnosis, but returns several hours later complaining of more and worse symptoms. At this second visit, the doctor diagnoses the patient as suffering from a heart attack. The doctor has now correctly diagnosed this condition, but only after a significant delay.

Common Medical Misdiagnoses and the Consequences of Medical Misdiagnosis

Some conditions are more often missed or misdiagnosed than others. A few conditions create diagnostic problems in specific patient groups. Let's look at examples of both, then we'll talk about the consequences that can result from a misdiagnosis.

Common Misdiagnoses

A study by the Armed Forces Institute of Pathology showed that in the family practice setting, these were the five most often misdiagnosed conditions:

  • heart attack
  • breast cancer
  • appendicitis
  • lung cancer, and
  • colon cancer.

Diagnostic Errors in Women

Women are likely to experience more diagnostic errors than men when it comes to certain conditions. For example, women are 50% more likely than men to be misdiagnosed after suffering a heart attack. Misdiagnosis is also about 30% more common in women who have a stroke.

The problem isn't limited to conditions common to both genders. According to an estimate by the American College of Obstetricians and Gynecologists, roughly 10% of women in their reproductive years suffer from a painful and often debilitating condition called endometriosis. But it takes, on average, between 6 and 10 years after the first symptoms appear to get the condition correctly diagnosed.

Consequences of Diagnostic Errors

Not all misdiagnoses result in harm. In those that do cause harm, many times the harm is minor. On occasion, though, serious or even fatal consequences can follow a misdiagnosis. Here are some examples.

  • Misdiagnosed cancers. A missed or delayed cancer diagnosis can give the cancer time to grow and spread, sometimes making effective treatments more difficult or impossible.
  • Heart attacks in women. As a group, women who are hospitalized for a heart attack die more often than men, especially women under age 50.
  • Misprescribed drugs. Children who are prescribed antibiotics for a misdiagnosed bacterial infection run a greater risk of developing antibiotic resistance and other antibiotic side effects.

(Learn more about other kinds of common doctor and hospital medical errors.)

What You Must Prove to Win a Misdiagnosis Case

If you bring a misdiagnosis malpractice claim or lawsuit, here are the elements you'll need to prove:

  • you and the doctor had a doctor-patient relationship
  • the doctor was negligent, and
  • the doctor's negligence caused you some injury.

In most malpractice cases, you and the doctor will disagree over the second and third elements. That's where we'll focus our attention.

(To learn more about the elements of a medical malpractice claim, see Nolo's article Medical Malpractice Basics.)

Was the Doctor Negligent?

Medical negligence happens when a doctor fails to use the same level of care and skill as a similar doctor in the community would use under the circumstances. What does that mean? In a medical misdiagnosis case, you must prove that a doctor in a similar specialty, under similar circumstances, would not have misdiagnosed your condition.

Not every diagnostic error is malpractice. Skillful doctors sometimes make mistakes even when they're being careful. To decide if the doctor was negligent, you must evaluate what the doctor did and didn't do in making (or not making) a diagnosis.

This evaluation likely will require that you review the list of possible conditions the doctor considered when evaluating you—called your "differential diagnosis." After creating your differential diagnosis, the doctor rules in and rules out conditions by doing tests, getting X-rays or other diagnostic images, or referring you to specialists. Ideally, at the end of this process, the doctor is able to arrive at a correct diagnosis.

To prove misdiagnosis malpractice, you'll probably have to show that the doctor made one of these errors.

  • Failure to include the correct diagnosis. The doctor didn't include the correct diagnosis on your differential diagnosis list, when a reasonably skillful and competent doctor under similar circumstances would have.
  • Failure to order tests, procedures, or specialist consultations. The doctor included the correct diagnosis on your differential diagnosis list. But the doctor didn't order the proper tests, studies, or consultations to confirm your diagnosis, when a reasonably skillful and competent doctor under similar circumstances would have.
  • Failure to recognize the correct diagnosis. The doctor included the correct diagnosis on your differential diagnosis list and ordered the correct tests and studies. But the doctor still failed to recognize your diagnosis, when a reasonably skillful and competent doctor under similar circumstances would have.

Most often, proving negligence in a misdiagnosis lawsuit is both difficult and complicated. You'll need expert witnesses to review your file and testify that the doctor was negligent. You should hire an experienced medical malpractice lawyer to handle your case.

The Doctor's Negligence Caused You Some Injury

In any medical malpractice case, it's not enough to prove that the doctor was negligent. You also have to prove that the doctor's negligence caused you some injury. Specifically, you must show that:

  • the doctor's negligent misdiagnosis or delayed diagnosis caused your condition to progress or worsen beyond what it would have had a correct and timely diagnosis been made, and
  • the progression or worsening of your condition had a negative impact on your treatment, your likely outcome, or both.

Here are some common examples. A delayed cancer diagnosis might mean longer or more difficult chemotherapy or radiation. Worse yet, a delay in diagnosis might allow cancer to progress or spread to the point where it no longer can be treated effectively and is more likely to cause death. With some cancers, a delay in treatment increases the risk of recurrence.

Damages You Can Collect in a Misdiagnosis Lawsuit

If you win a medical malpractice case—including one based on a misdiagnosed condition—you're allowed to collect compensation (called "damages") for the injuries the doctor's negligence caused. Generally speaking, these compensatory damages fall into two categories:

  • special (also called "economic") damages, and
  • general (also called "noneconomic") damages.

Special Damages

Special damages compensate you for your out-of-pocket losses. For example, past and future medical expenses and lost earnings are included in your special damages. So are things like therapy costs, amounts you pay for medical equipment like crutches, and pharmacy charges.

General Damages

General damages are meant to compensate you for more "intangible" injuries, such as pain and suffering, emotional distress, loss of enjoyment of life, and disability and disfigurement. These damages can add up quickly in a medical malpractice case. Because general damages can be difficult to value, your lawyer might use a mathematical formula (sometimes called a "multiplier") to put a dollar value on them.

Note that most states have enacted damage caps that limit the general damages you can collect. Since general damages might be the biggest item of damage in a malpractice lawsuit, these caps can significantly reduce the value of your case. If you live in a damage caps state, you'll want to have an experienced malpractice attorney lawyer handling your case.

Should You File a Misdiagnosis Malpractice Lawsuit?

There's no simple answer to that question. And it's really not a question you want to answer on your own, without expert legal advice. Generally speaking, here are some of the things you need to know to answer that question.

Can You Prove the Doctor Was Negligent?

There's almost no such thing as a simple misdiagnosis malpractice case. Even when the doctor's error seems obvious, you still might need expert witnesses to prove your case. In any medical malpractice lawsuit, you can expect the doctor to vigorously fight your negligence claims.

The Costs of a Malpractice Lawsuit

Malpractice cases tend to be very expensive, for a number of reasons. First, you'll almost certainly need to have one or more expert witnesses involved in the case, who will testify to your treating doctor's negligence. If you're trying to win future damages such as medical expenses or lost earnings, you'll need experts there, too.

The costs to take even a moderately complicated malpractice case to trial can easily exceed $75,000. If you have a strong case, you might find a malpractice lawyer who will advance these case expenses and deduct the amounts advanced from any settlement or jury verdict you get. But because they can be so costly, good malpractice lawyers will think very carefully about taking on a case.

How Much Is Your Case Worth?

Putting a value on your medical malpractice case is no simple task. In addition to valuing your damages (including the impact of damage caps), you must consider factors such as:

  • the risks of putting your case in the hands of a jury
  • the bias some jurors feel in favor of healthcare professionals, and
  • the costs of preparing your case for trial and trying it.

Weighing these factors (and others) to arrive at a value for your case requires expertise that can only be gained through years of experience working on and trying medical malpractice cases. In addition, an experienced lawyer knows the claim valuation practices and jury verdict history in your area. You'll be hard-pressed to put an accurate value on your misdiagnosis case without that help.

Get Help With Your Diagnostic Error Malpractice Case

Medical malpractice lawsuits, including diagnostic error cases, are among the most difficult of all personal injury cases. Complex facts, difficult medical and legal issues, and the need for expert witnesses are just a few of the many reasons why you don't want to handle your malpractice suit without expert legal help. You can bet that the doctor you're suing will have capable and experienced lawyers on the case, and you should too.

Make the Most of Your Claim
Get the compensation you deserve.
We've helped 175 clients find attorneys today.
There was a problem with the submission. Please refresh the page and try again
Full Name is required
Email is required
Please enter a valid Email
Phone Number is required
Please enter a valid Phone Number
Zip Code is required
Please add a valid Zip Code
Please enter a valid Case Description
Description is required

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you